Wednesday, March 20, 2013

Judge upholds Avon fracking moratorium, rules against Lenape

Published on Tuesday, 19 March 2013 16:01
Written by Josh Williams
Protestors outside of the courthouse in February. (Photo/ Jsoh Williams)

LIVINGSTON COUNTY — A Livingston County Judge has issued a summary judgement dismissing the lawsuit filed against the Town of Avon by Lenape Resources, and upholding the Town's controversial moratorium against hydrofracking.

In legal terms, Judge Robert Wiggins issued the summary judgement dismissing the entire case, including the 10 causes of action. In addition, the motion of the DEC to dismiss for lack of personal jurisdiction was granted.  Judge Wiggins cited case law precedent set in the case known as Frew Run, and cited the Mined Reclamation Act:
The Court concludes that Avon is entitled to summary judgment dismissing Lenape's firsts cause of action, sounding in express preemption. Because the statute at issue contains an express preemption clause, it is unnecessary to consider the applicability of the doctrines of implied or conflict preemption...Thus Lenape's second action is dismissed as well. Because the third and fourth causes of action also rely on the argument that the local Law is preempted by the OGSML (Oil Gas and Solution Mining Law), they too are subject to dismissal.
Jude Wiggins also called the sixth action 'frivolous' and the seventh claim 'not ripe' in his decision.
The ruling also tosses out Lenape's claims that the town of Avon was using unreasonable use of "police power" to regulate zoning.  The judge's decision states that the Town was acting reasonably in temporarily halting development while they consider zoning changes.

"We are pleased with the decision," said Avon Town Attorney James Campbell. "It's obvious Judge Wiggins took the time to make a reasoned decision."